The Racial Contract

Mills' (Reference Mills1997) treatise on the Racial Contract claims that “white supremacy is the unnamed political system that has made the modern world what it is today” (p. 1), structuring the vastly unequal global distribution of wealth, power, rights, security, and opportunity. While the dawning of European modernity saw the explicit adoption of social contract theory as an explanatory and normative framework for thinking about people in society, this shift was, Mills argues, accompanied by a Racial Contract that excluded most of the world's human beings and groups from the categories of “people” and “society,” respectively. This Racial Contract comprises

Thus the genocides, enslavements, and wars of colonization perpetrated by the Europeans, far from being aberrant violations of the social contract's claim to rest on “the popular consent of individuals taken as equals,” were actually essential to its constitutive “underbelly,” the Racial Contract (Mills Reference Mills1997, pp. 3–4). Mills finds evidence of this dichotomy in virtually all modern social contract theories, from references to indigenous people as embodying the state of nature—and thus intrinsically uncivil—in Hobbes and Locke to the racialogical dimensions of Kant's thought.

Although no longer condoned by law in our own era of allegedly universal rights, the Racial Contract's historical partitioning of the globe between full persons and subpersons undeniably persists. Mills explains this by periodizing the Racial Contract. While he argues that “the Racial Contract is continuously being rewritten to create different forms of racial polity” (Reference Mills1997, p. 72, emphasis in original)—and thus varies considerably over space and time—he identifies two very broad phases. In “phase one,” when the classic modern social contract theories were formulated, “white supremacy was openly proclaimed” (p. 73). In its second, contemporary phase, the Racial Contract has become tacit, as references to race have been excised from the official language of the juridical, political, moral, and institutional realms.Footnote ⁹

Unlike Rawls' revival of contract theory, which is purely normative,Footnote ¹⁰ Mills' states that his theorization, the “Racial Contract,” is not only normative but descriptive and explanatory, following the pattern of the nonideal contract in Rousseau's Discourse on Inequality (Reference Rousseau and Cranston1984). It “explains how an unjust, exploitative society, ruled by an oppressive government and regulated by an immoral code, comes into existence … enabling us to understand how these values and concepts have functioned to rationalize oppression,” toward the ultimate goal of ending that oppression (Reference Mills1997, pp. 5–6, emphasis in original).

Mills' emphasis on the function of concepts here is crucial. “[C]oncepts,” he writes, “are central to cognition” (Reference Mills1997, p. 6). Because, for the most part, White moral and political thought has elided the concept of race, Whites suffer from systematic blindnesses to the world as it actually is—i.e., fundamentally partitioned by race—or what Mills calls an “inverted epistemology” (Reference Mills1997, p. 18). The social contract, as a concept central to Western understandings of politics and society, has functioned as an epistemological obstruction. Epistemologically oriented to a facially raceless social contract, Whites generally lack the conceptual structures for seeing the centrality of race to all social and political formations touched by Europeans or their descendants. Moreover, Whites thus also lack a point of reference outside their own experience, and therefore often cannot really see their own privilege or its relation to the deprivation of others. The “Racial Contract” is a therefore a “corrective concept for allowing us to better cognize the actual world” (Reference Mills1997, p. 6). As I argue below, this concept proves particularly useful for cognizing—in deliberately broad and oversimplified strokes—one particularly powerful determinant of the contours of life in the actual world: namely, the global regime of citizenship.

Outline of the Global Regime of Citizenship

The global regime of citizenship is defined by four essential features. The first is its geography (which like all geographies is the product of history): the global regime of citizenship consists of a “White bloc” and a “nonwhite bloc,” roughly corresponding to the former colonizer/former colonized binary. The second is its resource differential: because of the original Racial Contract, resources, substantive rights, and opportunities are concentrated in the former. To be a citizen of the White bloc is to be, on average, materially better off, better-educated, longer-lived, healthier, and more physically secure (Milanovic Reference Milanovic2008; Shachar Reference Shachar2009; Winant Reference Winant2001).Footnote ¹¹ The third is its mobility differential across the White bloc/nonwhite bloc divide: if one holds a passport from a White bloc state, most international boundaries are indeed “flattened,” à la Thomas Friedman's (Reference Friedman2005) business-class vision of globalization. But if one is a citizen of a nonwhite bloc state, international boundaries tend to be very hard indeed. And those international boundaries where the White bloc and the nonwhite bloc meet—those borders where, in the words of Gloria Anzaldúa, “the third world grates up against the first world and bleeds” (Reference Anzaldúa1987, p. 3)—are the hardest of all. The wall between Mexico and the United States (Massey Reference Massey and Swain2007); between Israel and Gaza (Weitzman Reference Weitzman2007); and the wall around Ceuta—as Wendy Brown notes, they are increasingly militarized and increasingly marked by physical barriers (Brown Reference Brown2008).Footnote ¹² The fourth, finally, is its seeming neutrality from the perspective of the White bloc. Although it forcibly maintains a world that is satisfying to a relative few (mostly Whites) and devastating to much of the nonwhite global majority, the global regime of citizenship is generally understood by Whites—from rabid nationalists to international human rights advocates—as an a priori fact.

The global regime of citizenship thus exemplifies the way that the Racial Contract continues to structure our world. The partitioned geography of the global regime of citizenship reflects Mills' contention that even the paragons of Western democracy today are de facto apartheid states or “Herrenvolk democracies” (Mills Reference Mills1997, p. 28). Its concentrations of wealth in the hands of Global North Whites bears out Mills' emphasis on the economic gains of conquest and exploitation by Whites of the nonwhite peoples of the earth. And the mobility differential for nonwhite bloc versus White bloc citizens reflects Mills' argument that the Racial Contract's geography of inequality must be maintained through violence. The militarization of borders and increasing criminalization of immigrants of color (Nevins Reference Nevins2010), testifies to the perception of nonwhite bodies “out of place” as a challenge to the stability of the White supremacist order that must be met with force.Footnote ¹³

Most fundamentally, however, the global regime of citizenship perpetuates the Racial Contract by racing space and individuals, demarcating “civil and wild spaces” (Mills Reference Mills1997, p. 41) and their corresponding subjects. As Mills recounts, from the sixteenth through the nineteenth centuries, roughly, White elites drew the map of the world as partitioned between civilized White polities and “wild spaces” where nonpersons roamed. The latter lands were variously considered empty (a cognitive schema captured by the doctrine of “discovery”) and/or spaces of vice and danger, in need of civilizational virtue and harsh constraint. From the perspective of the present, the “wild spaces” inhabited by nonwhites have congealed into ghettos (internally) or the “third world” (externally), where the juridical, social, and political norms of Whites do not apply.Footnote ¹⁴ Further, these exceptions are concentrated in the “wild space” of the nonwhite body itself, a designation that issues partly from identification with “uncivilized” regions. Given this association, the bodies of people of color are seen as carrying a “bubble of wilderness” (Reference Mills1997, p. 53) around them as they move through White space, which exempts them from the protections that apply to White bodies.

I argue that the global regime of citizenship races space and bodies via two distinct rationalities of citizenship: first, the rationality of the Westphalian map, and second, through the norms of neoliberal citizenship. As an aspect of the “phase two” Racial Contract, however, these exclusions of the global regime of citizenship must be facially race-neutral. Accordingly, I argue that they function without recourse to explicit language of race, thereby reproducing Whites' moral cognitive dysfunction at the global scale. I discuss the exclusionary logic of nation-state-based citizenship and neoliberal citizenship in turn, and then outline how they work together.

Persistent Exclusions of Westphalian Citizenship

Hindess (Reference Hindess2002) and others have argued that, while the boundaries of nation-states have in some ways been dissolved under processes of globalization, the modern state/citizenship system remains an indispensable framework for the global governance of populations. I adapt this point here to argue that one of the principal reasons for its indispensability is that it allows the raced geography of the Racial Contract to comfortably (for Whites) persist while seeming to accord universal equality.

The Westphalian nation-state system has, in fact, recently come under substantial attack by normative theorists as incompatible with global justice. Working from a variety of conceptual frameworks, these theorists converge in decrying as fundamentally unjust the fact that the arbitrary circumstances of one's birth powerfully determine one's life chances (Baubock Reference Baubock, Benhabib and Shapiro2007; Shachar Reference Shachar, Benhabib, Shapiro and Petranovic2007, Reference Shachar2009; Stevens Reference Stevens1999, Reference Stevens2010). Nancy Fraser (Reference Fraser2009), for instance, argues that what she calls the “Keynesian-Westphalian misframing” (p. 21) of contemporary global reality works powerfully to obstruct redress for individuals and groups hurt by its forces and flows—to drastically circumscribe the both the set of legitimate subjects of justice and the scope of legitimate claims.

The following section homes in on the specifically racial effects of the Westphalian map. White bloc versus nonwhite bloc citizenship profoundly structures what Judith Butler (Reference Butler2004) calls “the differential geopolitical distribution of corporeal vulnerability” (p. 29). It legally binds human beings to both 1) a particular set of material conditions set in place through the dispossessions of the colonial era, and 2) an enabled (for White-bloc citizens) or constrained (for the nonwhite bloc) mobility across borders, especially the world's White bloc/nonwhite bloc borders. A child born in Haiti or Afghanistan is far less likely to reach even one year of age, let alone adulthood, just by virtue of being born there rather than in France or the United States (WHO 2008). And it is far more difficult for Haitian or Afghani citizens to gain entry to France or the United States than for French citizens to legally enter the United States and vice versa (Farmer Reference Farmer2005). The binary schema of White bloc/nonwhite bloc, of course, obscures important internal variations.Footnote ¹⁵ Nevertheless, the difference in survival and opportunity at every stage of life is very significant (Shachar Reference Shachar, Benhabib, Shapiro and Petranovic2007).

The Westphalian map that defines hegemonic understandings of the world, codified in the UN's rules of international sovereignty, maintains and normalizes this racing of space, with its unequal distribution of resources and vulnerability. As Hindess (Reference Hindess2002) notes, nearly everyone worldwide is now a citizen of some nation-state—but this abstract equality of “citizen-ness” masks enormous raced disparities both within and, as is my focus here, across the global racial divide. On the Westphalian world map, with its “quality of simplicity and clarity that almost resembles a Mondrian painting” (Baubock Reference Baubock1997, p. 1), Haiti and Afghanistan are outlined and colored in exactly the same way as France and the United States. The emptily equivalent “state-ness” of nation-states is emphasized, rather than the vast material inequalities between states (and the blocs) on the ground. Each state is the legal guarantor of the well-being of its citizens, yet unless there are situations of genocide (and even then, perhaps not) there are no inquiries as to the state's ability to do so. In the sphere of international relations, this adds up to a sort of “On the Jewish Question” (Marx Reference Marx and Simon1994) scenario writ large, wherein all states may participate in the global “public,” as long as everyone agrees to leave the differences between the White and nonwhite blocs—thirty-year life expectancy differentials, hundredfold infant mortality differentials, and excellent healthcare and education versus a near-total lack of doctors or schools (Davies et al., Reference Davies, Sandstrom, Shorrocks and Wolff2006; Weisbrot et al., Reference Weisbrot, Baker, Kraev and Chen2001; WHO 2008)Footnote ¹⁶—at the door. These crucial differences between the spaces of White bloc citizenship and nonwhite bloc citizenship, and the histories of those differences, as in Marx's polemic, are therefore depoliticized, silenced, and (from the White bloc) unseen.

This perspectival invisibility signals the participation of contemporary citizenship policy in the “phase two” Racial Contract. This differs from the late nineteenth to the mid-twentieth century, when many aspects of U.S. citizenship law baldly partook in “phase one” Racial Contract exclusions. Chinese (and eventually most East Asian) immigration was banned beginning in the 1880s. 1924's Immigration Act invoked the “Whites only” stipulation of the Naturalization Act of 1790 as grounds for codifying the exclusion of nonwhite “aliens ineligible to citizenship” (Haney Lopez Reference Haney Lopez2006; Ngai Reference Ngai2004).Footnote ¹⁷

Now, however, because of the superficial equivalence of all states and citizens, the Westphalian map allows the de facto drawing of a seemingly innocent partition between the “civil” and “wild” spaces of the world—via skill-, health-, and education-based visa, residency, and citizenship requirements—that replicates the overtly racial partitioning of the original Racial Contract. But whereas, previously, “wild” spaces' alleged wildness served as an explicit justification for invasion of nonwhite space, “wildness” now serves to justify the exclusion of people of color from White space. Contemporary “wildness”—measured now by armed violence, disease, low life expectancy, high infant mortality, illiteracy, and malnutrition—is, ironically, a long-term effect of those colonial invasions. Yet the self-serving synchronism of the Westphalian map acknowledges none of this history.Footnote ¹⁸ Responsible only to themselves, the sovereign states of the White bloc, quite rationally, open the doors of potential citizenship most easily to “civil bodies” from within the White bloc itself.Footnote ¹⁹ The conceptual framework of Westphalian citizenship thus simultaneously perpetuates the partitioned geography of the original Racial Contract, and hides global exclusions via the superficial equality of state sovereignty.

Efficient Exclusions: Neoliberal Citizenship

“Neoliberal citizenship” is the state-enforced, socially pervasive reconfiguration of citizenship norms as market-based competitive individualism and self-entrepreneurship (Brown Reference Brown2005). If Westphalian citizenship maintains and hides the racing of space, neoliberal citizenship maintains and hides the racing of individuals.

“Neoliberalism” in the sense of a set of citizenship norms departs somewhat from the most common usage of the term, but it is important to understand the latter as the stage for the former. Neoliberalism most commonly denotes a set of economic policies grounded in the philosophy that societies work best when their markets are free from from government regulation. The now-familiar roster of neoliberal policies includes large-scale privatization of industries, cuts in taxes, business deregulation, significant reductions in government-provided services, and the dismantling of welfare state institutions (Goldberg Reference Goldberg2009; Harvey Reference Harvey2005; Sparke Reference Sparke2006).Footnote ²⁰ Internationally, economic neoliberal free trade was entrenched through agreements between wealthier and poorer nations (such as NAFTA) and through membership in organizations like the WTO (Massey and Kelly, Reference Massey and Kelly2007). This has often increased the vulnerability of poorer nations, forcing imported goods onto their markets and disrupting established economic equilibria, demanding the removal of existing social supports and agricultural subsidies, as well as requiring stringent loan repayment terms, often plunging much of the population into poverty and triggering waves of transnational labor migration (Harvey Reference Harvey2005). Neoliberalism as an economic program has deepened the resource differential between the White and the nonwhite citizenship blocs, as well as deepening intra-national racial inequality in the United States and in other nation-states, including Brazil, Israel, and South Africa (Goldberg Reference Goldberg2009).

But economic policies are not the whole story. As Wendy Brown (Reference Brown2005) argues, neoliberalism also denotes a radical reorganization of how states and citizens are thought about, talked about, and shaped by policy. Following Michel Foucault's (Reference Foucault, Faubion and Hurley2000) formulation of governmentality,Footnote ²¹ she defines neoliberalism as a political rationality: an organizing logic of governance that works though official and popular discourses, institutions, and policies toward the production of particular kinds of political subjects and spaces. A specifically neoliberal political rationality involves “extending and disseminating market values to all institutions and social action” (Brown Reference Brown2005, p. 40). This includes the lives and conduct of individuals; humans are normatively cast as rational actors whose moral faculty consists of the capacity for self-maximizing cost-benefit analysis. This “entails a host of policies that figure and produce citizens as individual entrepreneurs and consumers whose moral autonomy is measured by their capacity for ‘self-care’—their ability to provide for their own needs and service their own ambitions” (Brown Reference Brown2006, p. 695).

Important here is that neoliberalism as a political rationality not only figures citizens as entrepreneurs, but also produces them as such: as the very option of public supports is removed, a sort of entrepreneurialism of desperation is forced upon the poor, involving such “rational” choices as living in one's car or with an abusive partner as an alternative to homelessness. People of color worldwide—women of color most of all—bear the brunt of this (Pratt Reference Pratt2004; Sassen Reference Sassen, Ehrenreich and Hochschild2002). In plain language, the global poor—who are mostly people of color—are seen as having brought about their own disadvantage through moral failure. Neoliberal citizenship norms thus effectively resuscitate, while eschewing racial language, the Racial Contract's ontological partitioning of the world into morally and politically perfected Whites and morally and politically unfit nonwhites.

In the United States, site of some of the harshest neoliberal reforms, the receipt of public funds is widely regarded as both rewarding and enabling this moral failure/political unfitness. These neoliberal citizenship norms are encapsulated by the abject figure of the African American Welfare Queen,Footnote ²² a fiction that persists to this day, regardless of the fact that we effectively no longer have welfare in this country.Footnote ²³ Intimately related to this figuration is the public outrage at the alleged receipt of public support and services by undocumented immigrant mothers (Jacobson Reference Jacobson2008; Roberts Reference Roberts and Perea1997b). Like the Welfare Queen, the undocumented mother is represented as hyperfecund, unable to responsibly manage her reproductive processes (Jacobson Reference Jacobson2008), compounding the immorality of public dependency and confirming her unfitness for political membership. This framing of undocumented immigrant women as neoliberal “anticitizens” (Inda Reference Inda2006; Roediger Reference Roediger1999), as we shall see, is central to the attacks on U.S. birthright citizenship.Footnote ²⁴

Maintaining our focus on the United States, then—as we will for most of the rest of this paper—undocumented mothers' alleged dependency and lack of fiscal discipline mark them as outsiders among the (White) neoliberal citizenry. Images of their uncontrolled reproductive bodies, in particular, encapsulate them in the “bubble of wilderness” that, for Mills, surrounds people of color in White-ruled polities and White imaginations. And, in a double movement analogous to that of the Westphalian map, neoliberal norms hide the violent history of the Racial Contract even as they reproduce its effects. Just as Welfare Queen rhetoric makes invisible the historical and ongoing lack of opportunity for poor women of color native to the United States, representations of the undocumented mother's personal irresponsibility and dependency obscure the inequalities between the White and nonwhite blocs that, in fact, probably explains her migration. Within a neoliberal conceptual framework, her situation appears to be a result of personal “mismanagement” rather than the effect of the global structural deprivation of people of color, exacerbated by punishing neoliberal reforms. The latter are thus radically dehistoricized and depoliticized.

Exclusionary Synthesis: Westphalian Map, Neoliberal Citizens

I have outlined the respective ways in which Westphalian and neoliberal rationalities of citizenship both reproduce and obscure the territorial and human geographies of global White supremacy. In this section, I briefly elaborate how these two rationalities dovetail in the operations of the global regime of citizenship.

Consisting of around two hundred states, the Westphalian grid hides the global geography of privilege and deprivation. Meanwhile, differential citizenship regulations vis-à-vis White versus nonwhite subjects—trafficking under apparently race-neutral criteria of education level and skills—maintains those raced inequalities, partitioning the world and its populations between a “civil” White realm of abundance and mobility, and a “wild” nonwhite realm of scarcity and constraint. The Westphalian political map, by appearing as natural as the landmasses and oceans that form its continental contours, frames the breathtakingly unequal distribution of resources and opportunities as the natural order of things, rather than a contingent outcome of specific histories of domination.

Neoliberal citizenship norms augment the exclusionary effects of the Westphalian system, complementing the racing of space with the racing of individuals. Not only are the historical causes of the deprivation of peoples of color hidden from view; poverty itself is construed as a moral failing, and thus deserved—all the more reason for keeping nonwhites out of White space. Conversely, White affluence is construed as reward for merit, moral self-actualization, and fitness for political personhood. This, in turn, both bolsters and legitimates the mobility differential of the global regime of citizenship, producing what Matthew Sparke (Reference Sparke2006) calls a “neoliberal nexus” of “free market transnationalism” for (White) elites, and “securitized nationalism” for nonwhite, non-elite bodies. And even if nonwhite bloc citizens do manage to bypass the hard and dangerous boundaries of the White bloc—as in the case of undocumented immigrants—they will find themselves unable to shake off a residual aura of “wild” raced space. In sum, the Westphalian model of citizenship hides inequality with an empty equivalence of status, and administratively blocks substantive change of status; the neoliberal model, taking for granted that inequality, accords responsibility to subjects for their own satisfaction or devastation, hiding the histories of White supremacy that have imposed this differential.

Of course, Mills (Reference Mills1997) would remind us, this hiddenness is perspectival, an effect of the “epistemology of ignorance” (p. 18) that issues from the materially privileged situation of the White citizenship bloc. In the Wretched of the Earth, Frantz Fanon (Reference Fanon and Philcox2004) writes that “[t]he colonized world is a world divided in two … The colonist's sector is a sector built to last, all stone and steel … lights and paved roads, where the trash cans constantly overflow with strange and wonderful garbage, undreamed-of leftovers … a sated, sluggish sector, its belly permanently full of good things.” In contrast, in the sector of the colonized, “You are born anywhere, anyhow. You die anywhere, from anything. It's a world with no space, people piled one on top of the other … The colonized sector is a famished sector, hungry for bread, meat, shoes, coal, and light” (p. 4).Footnote ²⁵ And yet the colonizer cannot see the actual conditions of the colonized sector: there is a “kind of reification secreted and nurtured by the colonial situation” (p. 8). The colonizers not only imposed and maintained a regime of everyday violence, exploitation, and impoverishment for the colonized, but also constructed a world whose spatial and epistemological limits protected them from contact with, and even knowledge of, the effects of that regime. With the “Racial Contract,” Mills extends this claim to encompass our own postcolonial era. Likewise, I have argued, the global regime of citizenship, through both its Westphalian and neoliberal rationalities, both maintains the structures of White supremacy and prevents Whites' perception of those structures.

Mills (Reference Mills1997) also makes the converse claim, arguing that people of color have a potentially privileged epistemological stance, and are potentially able to see through the reified conceptual structures of White supremacy. If the global regime of citizenship is an aspect of the contemporary Racial Contract, it follows that a position outside of White bloc citizenship could potentially offer resources for recognizing formal citizenship's implication in White supremacy. In the second half of this paper below, I consider a pivotal congressional hearing as a test case for these epistemological claims.

Theorizing Birthright Citizenship

The recent restriction of birthright citizenship as a problem of global racial justice has garnered surprisingly little attention from political theorists.Footnote ²⁶ Jacqueline Stevens, who offers the most carefully conceived criticism of the harms of birth-based citizenship ascription, does not attend to these recent developments. Stevens is rightly critical of the arbitrariness and injustice of the current system of birth-assigned, nation-state-based citizenship. In Reproducing the State (Reference Stevens1999), she highlights the violence—ethnic conflict, brutal gender oppression—that issues from the metonymic relationship between family, race, and nation, and points toward a world in which citizenship is entirely decoupled from access to resources and opportunities. With regard to birthright citizenship, she comments incisively on the mystification inherent in the characterization of any citizenship assigned at birth—whether by a territorial or bloodline (jus sanguinis) criterion—as consensual. In States Without Nations: Citizenship for Mortals (Reference Stevens2010), she expands this argument against birth-assigned citizenship into a key component (along with the abolition of marriage and inheritance laws) of a program to abolish the nation itself. Stevens characterizes the nation as the preeminent solution to the (particularly male) human fear of mortality. It is the primary institution, along with family and religion, “through which humans seek to transform their condition from one of finitude to one of infinitude” (Reference Stevens2010, p. 5), as the nation promises to live on eternally even as individual human lives must perish. She locates the roots of large-scale violence throughout history in this promise, as it allows the nation (like family and religion) to demand the self-sacrifice of its members and the death of non-members in order to preserve its own immortality. Stevens envisions, and even includes practical steps toward, an alternative world of “states without nations,” a cooperative system of administrative-redistributive units that operate according to a principle of global public good, among which movement is entirely free and “people belong because of choice, residence, and commitment” (p. 77) rather than the irrational criterion of birthright status.

Her argument misses an important detail, however, when she asserts that, contrary to common perception, jus soli rules are not inherently any less exclusionary than jus sanguinis rules. For her, both are equally irrational and anti-liberal criteria for membership: “It is ironic that modern commentators so often represent birth by territory as … more inclusive than lineage criteria … From the point of view of an individual born to particular parents or on a particular territory, the birth principles of land and lineage are equally restrictive of that person's options for political membership” (Stevens Reference Stevens1999, pp. 61–62). In Stevens' view, for a less patriarchal and less racist world with prospects for actual democracy, we should equally repudiate all policies by which each citizen is bound to his or her particular nation-state by birth.

While this characterization of jus soli and jus sangunis as equally coercive may be accurate over the longue durée of citizenship history, Stevens fails to note the transnational exclusionary dimensions of the present context signaled by the recent trend of restricting jus soli in the United Kingdom, Australia, Ireland, New Zealand, and the corresponding attempts in the United States. Though I am in broad agreement with Stevens' assessment of the global system of birth-based citizenship as unjust in its totality, her argument does not leave room for the appreciation of the crucial differences between modes of citizenship assignment in relation to the White supremacist global regime of citizenship. Stevens' condemnation of jus soli and jus sanguinis as equally exclusionary ignores the fact that, as Ngai (Reference Ngai2007) writes, “in the modern era of global migration, birthright citizenship has been a mechanism for incorporating new immigrants [who are largely from the Global South], and its disavowal a mechanism for exclusion” (p. 2530) along the lines of the Racial Contract. Considered together, the recent jus soli restrictions signal a kind of White-bloc solidarityFootnote ²⁷ not entirely reducible to the passionate attachment of the citizen to his or her own nation, qua notional family and immortal refuge for death-fearing mortals, that Stevens justly condemns. This transnational White solidarity maintains the exclusion of nonwhite bodies not only from particular nation-states but from a substantial swathe of the affluent world. Stevens therefore misses, conversely, the subversive potential of the continued recognition of U.S. birthright citizenship in the service of her own political vision. The upholding of birthright citizenship in the United States, I argue, maintains an important chink in the increasingly extensive and fortified worldwide division between “civil” spaces of whiteness and “wild” spaces of nonwhiteness. The defense of birthright citizenship, while relying upon the admittedly exclusionary categories of the current global regime of citizenship, nonetheless offers substantial material and epistemological challenges to the global Racial Contract that underpins those categories—and may, over time, transform them.

The analysis that follows, then, in contrast with Stevens' argument for the worldwide abolition of birth-assigned citizenship, begins with the historical actuality of the recent attempts to restrict jus soli. It situates its judgments within the geographical context of the United States as a White-ruled polity within the global regime of citizenship, where the specific proposed curtailment of birth-assigned citizenship would in fact work to intensify existing exclusions. Building on the foregoing formulation of the global regime of citizenship as an instantiation of the Racial Contract, it homes in on the epistemological implications of that claim. It argues that a species of what Mills identifies as the cognitive dimension of the Racial Contract manifests within the global regime of citizenship as a White epistemology of citizenship, an obstructed vision that tends to attach to the benefits of the White-bloc citizenship. Like Mills' “White ignorance” more generally, this way of seeing citizenship entails a profound collective memory loss. Mills (Reference Mills, Sullivan and Tuana2007) sees institutionalized White amnesia, “the management of memory” (p. 28) as a crucial element of White ignorance. Vehicles for that management include standard textbooks, which “help us forget that we wrested the country away from Native Americans” (Loewen Reference Loewen1996, p. 133) and “minimizing the extent to which the ‘peculiar institution’ … shaped the national economy, polity, and psychology” (Mills Reference Mills, Sullivan and Tuana2007, p. 30). A White epistemology of citizenship hinges on just such institutionalized amnesia. As we will see in the transcript of the arguments against birthright citizenship, Westphalian and neoliberal norms interlock with an idealized memory of U.S. citizenship, against which recent immigrants of color are seen as threatening deviations.

Correspondingly, in examining the arguments in defense of birthright citizenship, this analysis focuses on the role of remembrance against the grain of the White epistemology of citizenship in contesting the account of the restrictionists. Defenders of birthright citizenship call into question the Westphalian and neoliberal visions of citizenship that both subtend and reinforce this forgetting.

Background on the Hearing: Context and Participants

The mid-1990s marked the apex of a movement toward the significant hardening of divisions between U.S. citizens and non-citizens—a setting of the terms that obtain today. In 1993–1994, a new “deterrent” enforcement regime instituted the permanent presence of thousands of armed agents guarding the U.S.-Mexico border from unauthorized crossings (Inda Reference Inda2006; Perea Reference Perea1997). 1994's Proposition 187 in California, passed by a majority of voters, would have disqualified all undocumented immigrants from public services, including health and education, and required that service providers report immigrants to federal immigration authorities. Though immediately challenged in court and eventually overturned, the inclusion of many of its tenets in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), the federal immigration reform that did pass two years later, made it a very significant precedent for the anti-immigrant position that became increasingly common in the 1990s (Inda Reference Inda2006; Jacobson Reference Jacobson2008). In 1996, along with the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), IIRIRA cut federal welfare eligibility for all undocumented immigrants, and many immigrants with legal status. IIRIRA also transformed misdemeanors committed by undocumented immigrants into deportable offenses, removed time limits on pre-hearing detentions for potential deportees, and mandated biometric documentation for all Mexicans crossing into the United States (Fragomen Reference Fragomen1997; Inda Reference Inda2006). Finally, the most literal hardening of the boundary between U.S. citizens and their southern neighbors began during this time: large-scale border fencing—now a 650-mile barrier along the U.S.'s southwestern border (Sherman Reference Sherman2012)—was first authorized by Congress within IIRIRA (Nuñez-Neto and Kim, Reference Nuñez-Neto and Kim2008, p. 1). The summary deportations, detention in prisons, workplace raids, and literal walls that together define the current anti-immigrant moment have their beginnings in the legislative and procedural shifts of the 1990s (Jacobson Reference Jacobson2008; Massey Reference Massey and Swain2007; Massey and Kelly, Reference Massey and Kelly2007).

It was during this time that the reproductive bodies of Latina immigrant women became a site of obsessive focus. Representations abounded in conservative media, legal scholarship, and policy discourse of the threat allegedly posed by that these women and their children (Jacobson Reference Jacobson2008). In 1995, nativist opposition to birthright citizenship for the children of undocumented mothers came to a head. The abolition of birthright citizenship was a Republican presidential campaign plank for 1996, and no fewer than seven proposals to end birthright citizenship for children of undocumented or non-citizen mothers were introduced during the 104th Congressional session. In December 1995, the House Committee on the Judiciary convened the first and only congressional hearing entirely devoted to the Fourteenth Amendment guarantee of birthright citizenship for all children born within U.S. territory.Footnote ²⁸ Under heavy media coverage, legislators on both sides of the debate marshaled expert witnesses. Because it bears significantly on the analysis that follows, I briefly describe the participants in the hearing.

The preponderance of participants were Congressional representatives, but their numbers also included law professors, a political scientist, a journalist, a county welfare administrator, and the U.S. Assistant Attorney General.Footnote ²⁹ One unsurprising feature of the hearing was that the debate fell along highly partisan lines. The Republican-dominated Congress that had swept into office with the 1994 “Contract With America” campaign held the hearing during the 104th Congressional session. Along with their key agendas of (anti-gay) “family values” and (anti-welfare) “personal responsibility,” the “Contract with America” Republicans had vowed to rehabilitate a strong patriotic national identity (Schram Reference Schram2000). Although the “Contract with America” itself did not mention immigrants, Republicans quickly turned to hardening the lines between citizens and non-citizens. All but one of the restrictionist legislators who spoke during the hearing were GOP members.Footnote ³⁰ In contrast, the representatives who defended birthright citizenship were all Democrats.Footnote ³¹

But this was not the only difference between the two sides. Beyond the partisan divide, their respective demographics were also very different. In sharp contrast to the “White men in suits” (and one White woman) that comprised the opposition, the defenders of birthright citizenship included, inter alia, the first Asian American woman to be elected to Congress, the first African American woman elected from a southern state, a representative born in Puerto Rico and a representative of Puerto Rican descent, a Mexican American representative, an African American representative, a White woman representative, and a Mexican American journalist.

These identity markers come significantly into play in some of the arguments defending birthright citizenship. Though all participants in the hearing were formal citizens of the United States, and thus the White citizenship bloc, they highlight histories of racial exclusion from citizenship that continues to structure opportunities and experiences today. Mills (Reference Mills1997), in his schema of the Racial Contract, contends that people of color potentiallyFootnote ³² have a “perspectival cognitive advantage that is grounded in the phenomenological experience of the disjuncture between official (White) reality and actual (nonwhite) experience”—what he calls “‘racial’ version of standpoint theory” (p. 109).Footnote ³³ Several defenders of birthright citizenship use the view from a particular nonwhite identity group to retell the story of U.S. citizenship against the whitewashed grain of their opponents' account.

As cautioned above, the move to link the two groups' respective demographics with the terms of the debate risks lapsing into demographic determinism. The standpoint approach taken here emphasizes that a critical view of domination is potentially available to specific collectivities marginalized by those power relations, and is not automatic but requires work and intention (Hartsock Reference Hartsock1998, p. 229). The actualization of this political potential can only be affirmed through words and deeds that challenge the dominant regime of visibility. Accordingly, this analysis discerns White and counterhegemonic epistemologies of citizenship in narrative evidence, rather than ascribing them a priori according to somatic characteristics.

Amnesia and the White Epistemology of Citizenship

The following are two typical quotes from the hearing's anti-birthright citizenship contingent:

I argued in the first part of this paper that the global regime of citizenship, in its contemporary formation, entails a convergence of Westphalian and neoliberal citizenship norms. Here, in these statements from Representatives Bryant and Gallegly, we see this convergence clearly: “in this country illegally” and “on welfare”; uncontrolled borders and public benefits. The violation of state sovereignty, on one hand, and dependency, on the other, marks undocumented mothers as quintessential anti-citizens.

Westphalian and neoliberal discourses also function with relative autonomy; with the outrage or sense of threat that they separately engender, they come together all the more strongly, buttressing the legitimacy of the global regime of citizenship. Two instances of such autonomous invocation are noteworthy. The first is the representation of Mexico as a sovereign enemy of the United States. The chaos of the Mexican revolution, and the well-known threatening figure of Pancho Villa, is used to race the space of Mexico (where most undocumented immigrants today originate). Meanwhile, the Westphalian map of realist international relations—states as bounded, monolithic, and self-interested entities in an anarchic war of all against all—obscures that racing, framing the objection as an abstract matter of two states in competition:

Interesting to note here is Bilbray's defensive declaration that his opposition to birthright citizenship is not racist but merely an attempt to enforce neutral rules—just before he tacitly invokes the threats of race: the specter of a Mexican occupation, the dark villainy of Pancho Villa.

The second, more common, case in which one citizenship rationality is present more or less singly is the figuration of undocumented immigrant women as failed neoliberal citizens. Most frequent are references to their alleged welfare dependency, which compares unfavorably with the upright morality of citizen taxpayers:

Further, citizen taxpayers are not the undocumented mothers' only foil. The latter's lack of discipline is also contrasted with past generations of upstanding (White) immigrants.

The clear implication is that the undocumented immigrants of today embody the negative of this snapshot: coming from a space of nonwhiteness rather than Europe, they are disconnected from Americans, diseased, uninterested in honest work; welfare parasites with no interest in political membership as an end in itself; and passionately disrespectful of American values.

In most cases, however, the two rationalities are difficult to tease apart. For instance, the undocumented mother is figured as lacking not only discipline but decency:

Because it is not simply about the use of services, but an unabashed brazenness in admitting to the deed, this outrage points to an element beyond undocumented women's basic moral failures in terms of neoliberal citizenship norms. This failure here exceeds irresponsibility and begins to shade into wildness, a complete lack of moral compass. This sentiment crystallizes most clearly in Rep. Bilbray's dare to doubters:

The alleged animality of the undocumented immigrant woman (Santa Ana Reference Santa Ana2002), the “bubble of wilderness” that, according to Mills, people of color carry through White space, is neatly encapsulated in Bilbray's challenge. The spectacle of her body, performing the most private of functions in public, is an affront to civilized White eyes; so far beyond the pale, he implies, that it must be seen to be believed. Her wildness clearly marks her as an outsider to the White polity who ought to be returned to the wilderness where she belongs. The raced failures of neoliberal citizenship fold back into the raced spaces of the Westphalian map.

We thus see how Westphalian and neoliberal rationalities of citizenship work together to construe undocumented immigrants as anti-citizens, legitimating their exclusion from the polity. If we revisit the examples given above, however, we can also discern that part of what binds these rationalities together is their complementary amnesias about the actual history of United States citizenship. The Westphalian invocation of the Mexican Civil War in the early twentieth century not only neatly pairs the figure of a Mexican with a national security threat; it also reinforces the image of a historically stable territorial border—stable enough for Pancho Villa's crossing to be a clear act of invasion—at its current location between the American southwest and Mexico. Yet as Mae Ngai's (Reference Ngai2004) account reminds us, this memory of the historical clarity of the United States-Mexico border is a false one; for most of the first two decades of the twentieth century, when the Mexican Civil War was fought, Mexicans (and presumably Americans) crossed freely back and forth across the Rio Grande. Furthermore, the memory of a stable U.S. border along its current lines obscures the fact that, only a few decades before, New Mexico (along with Arizona, California, Nevada, Utah, and part of Colorado) had been part of Mexico, its inhabitants Mexican citizens—and that this territory was wrested from Mexico with great violence in the 1848 war.Footnote ³⁴ The amnesia attached to the Westphalian rationality of citizenship allows the boundaries of U.S. citizenship to be remembered as always-already existing where they are now, clear and uncontested, rather than as artifacts of violent U.S. expansionism.

If Westphalian amnesia gives rise to an unproblematic historical space of citizenship, the complementary neoliberal amnesia populates the past with virtuous citizens within that space. As shown above, opponents of birthright citizenship draw a diachronic contrast between the dependent contemporary immigrants and hardworking ancestor immigrants, who made their own way without asking for a handout. This throws the “accidental citizenship” of the children of undocumented immigrants into sharp relief; unlike the old days, when citizenship had to be achieved, we are now handing out citizenship as a reward for promiscuity and laziness (never mind that nearly all Americans, including these legislators, are themselves citizens by accident of birth). Finally, Representative Bilbray's example of his grandmother tells a story about the historical inclusivity of citizenship: even a humble Polish maid was able to achieve citizenship—and, apparently, a family wage—by virtue of a strong work ethic and persistence. The long history of racial exclusions from U.S. citizenship (Haney Lopez Reference Haney Lopez2006) is thus erased. This erasure is particularly problematic in view of the original context and purpose of the Fourteenth Amendment's birthright citizenship clause: namely, to overturn the Dred Scott decision that had deemed African Americans as forever ineligible for citizenship.

A U.S. citizenship peacefully contained within the United States' “natural” borders, composed of independent workers making their own way, inclusive of anyone with the requisite moral fiber: this is the managed memory that underpins, and is in turn reinforced by, the White epistemology of citizenship. Against this background, the notion of sharing the political and economic resources of White bloc citizenship with the (nonwhite) children of undocumented immigrants seems unnatural: an “offense to common morality and common sense” (U.S. Congress, House 1996, p. 95).

Remembering Citizenship: In Defense of Jus Soli

In this section, we see how the defenders of birthright citizenship challenge the claims of the birthright restrictionists, and the amnesia that underpins them. One major strategy, in response to the allegations that undocumented immigrants are welfare-dependent, and thus disqualified from citizenship in neoliberal terms, is to recast immigrants as workers rather than calculating welfare mothers.

In view of the birthright restrictionists' depictions of undocumented women as animal-like, obscenely displaying their reproductive processes, this last quote is especially telling. In contrast to the leaky abjection of laboring maternal bodies, Gutierrez's undocumented immigrants are engaging in wage labor, their secretions the honorable sweat of hard work.Footnote ³⁵

In addition to these challenges to the exclusion of undocumented immigrants from neoliberal citizenship, defenders of birthright citizenship also contest the Westphalian map of citizenship, depicting the territorial boundaries of the U.S. citizenry as historically contingent rather than natural. Representative Serrano reminds those present that these boundaries are in fact the product of violence:

In contrast to Representative Bilbray's depiction, in the previous section, of the United States-Mexico border at its current location, here Serrano reminds the audience, if only allusively, that this border came about through the forcible seizure of land from another sovereign state. Additionally, by assimilating the Pilgrims to illegal aliens, Serrano alludes to the historical White disrespect for the sovereignty of nonwhite peoples. He thus doubly highlights the irony of the construal by Representative Bilbray—as quoted above—and others of undocumented migration as a threat to sovereignty.

Representative Gutierrez also illustrates the contingency of the borders of U.S. citizenship by insisting on the accidental nature of his own status as a Puerto Rican American. In sharp contrast to the restrictionists' depiction of these boundaries as timeless and unchanging, Gutierrez emphasizes precisely their changing character, representing his U.S. citizenship as a chance side effect of a geopolitical calculation by the United States. The following passage exemplifies the way that several of the hearing's participants of color employ a strategy of reflexivity to contest the rationalities of citizenship that structure their opponents' arguments. Reflecting on the relationship between their own racialized identities and U.S. citizenship, they reveal parts of the story of U.S. citizenship that have been erased from the restrictionists' account.

In addition to highlighting the territorial border of U.S. citizenship as a product of the Unites States' aggressive expansionism, Gutierrez also undermines the rigid binarism of the White epistemology of citizenship by hypothetically locating himself in the space of nonwhite citizenship. Finally, in concert with the recasting of immigrants as workers, this exercise challenges the contrast drawn by opponents of birthright citizenship between the disciplined (White) immigrants of the past and the undisciplined (nonwhite) undocumented immigrants today. We thus see that the defenders of birthright challenge the amnesiac citizenship narrative of the birthright restrictionists: a history of virtuous citizens in a pure and clearly bounded space of citizenship, now being corrupted by morally inferior immigrants. They posit instead an overall continuity between past and present groups of immigrants—laborers all—and remind their audiences that the boundaries of citizenship, like those of the nation-state, are the contingent outcomes of an often-violent geopolitical history.

Perhaps the most striking acts of political memory however, are those that counter the birthright restrictionists' depiction of U.S. citizenship as historically inclusive. While the restrictionists acknowledge the facts of slavery and the barring of Blacks from citizenship, the complete absence of discussion of other exclusions paints these as unique, unrepeatable aberrations. They hold that, in the words of Representative Beilenson, “We are a Nation that has taken great pride in expanding the civil rights of groups of people through the years. The notion of denying an existing right to any class of people … goes against our nature” (U.S. Congress, House 1996, p. 33).

The defenders of birthright citizenship remember things differently. These remembrances take two major forms. First, many arguments refuse the characterization of White Americans' enslavement and rights-deprivation of African Americans as anomalous. Depicting slavery, rather, as a defining national tragedy, they insist—in language that recalls the memorialization of the Shoah—that the Fourteenth Amendment must be remembered in its connection to the Dred Scott decision, as a sacred safeguard against the ever-present dangers of race-based tyranny.

Secondly, defenders employ the strategy of reflexivity introduced above to bring back into view specific histories of racial exclusion that are missing from the restrictionists' memory of U.S. citizenship. For instance, Hawaii Representative Patsy Takemoto Mink responds indignantly to having been told by the hearing's committee chairs (both restrictionists) that the Asian Pacific Caucus has no place in a discussion of immigration and citizenship. She insists that the perspective available to the members of the caucus in fact sheds unique and important light on the issue:

Contesting the conflation of “immigrant” with “Hispanic,” Mink places the proposed exclusion of the children of undocumented immigrants within a historical continuum of race-based citizenship restrictions. Against the narrative of progressive rights-expansion articulated by Beilenson, Mink brings back into view the history of Asian exclusions from immigration and citizenship³⁶ and emphasizes its relevance for properly understanding the implications of the present debate.

Representatives Gutierrez and Serrano also employ this strategy of reflexivity to flesh out the differential historical experiences of citizenship for Whites and peoples of color. We saw above that Puerto Rican-born Representative Gutierrez emphasizes the instability of Westphalian boundaries by bringing into view the relatively recent extension of citizenship to denizens of the island, and by envisioning a counterfactual scenario that places him outside the bounds of U.S. citizenship. Extending this line of thought, Representatives Gutierrez and Serrano reflect ironically on the potential precariousness of their own political membership:

Although their tone is ironic, Serrano and Gutierrez spotlight the fact that, even once granted, the rights of citizenship have historically proven far more fragile for people of color than for Whites. The Hoover administration's “repatriation” program forcibly removed between one and two million persons of Mexican descent in the early 1930s; over 60% of the deportees are estimated to have in fact been U.S.-born birthright citizens, but their legal status afforded them little protection (Balderrama and Rodriguez, Reference Balderrama and Rodriguez2006). During “Operation Wetback,” the massive deportation campaign initiated in 1954, an unknown number of U.S. citizen children were deported to Mexico among the hundreds of thousands of undocumented persons rounded up and dumped in the middle of the northern Mexican desert (PBS, n.d.; Ngai Reference Ngai2004). During the decade between these two campaigns targeting Mexican immigrants, 110,000 people of Japanese descent—of whom two-thirds were citizens—were interned in concentration camps during World War II (Densho, n.d.). As Peter Nyers observes, our history shows that citizens of color, especially in times of national crisis and conflict, may be subject to being seen as “accidental citizens” whose formal status masks a threat, and should thus be disregarded for the good of the “true” citizenry (Nyers Reference Nyers2006). Though they do not cite these examples here, the reflexive speculations of Serrano and Gutierrez open the door for such histories to challenge the amnesia underlying the restrictionists' vision of U.S. citizenship.

Finally, Serrano and Gutierrez also use this strategy of reflexivity to highlight the fact that elements of these historical exclusions still persist, and that restricting birthright citizenship would serve to validate and expand these exclusions.

Serrano's bitterly humorous scenario warns the dangers that, given the history of racial exclusion in the United States, could attend the sorting of citizens from non-citizens at birth. Drawing on his own embodied experience as a nonwhite member of the White bloc citizenry, Gutierrez poignantly seconds this point:

We saw above that the reframing of undocumented immigrants as workers, and the attention to the territorial borders of citizenship as the product of violent expansionism, contest the specific amnesias that attach to neoliberal and Westphalian logics of exclusion. Here Serrano and Gutierrez's self-representations as “outsiders within” the United States' citizenry (Collins Reference Collins and Harding2004) highlight exclusions that give the lie to the narrative of U.S. citizenship as one of progressive inclusion. They draw upon their own embodied experience to call attention to the ways that many of these exclusionary dynamics live on in facially raceless terms, and to the specifically racial effects that birthright citizenship restriction would entail. Along with the sober attention to the relationship of the Fourteenth Amendment with the denial of rights to African Americans, and Representative Mink's insistence on remembering the exclusion of Asians from citizenship, these reflexive accounts contest the managed memory that enables a White epistemology of citizenship.

As acknowledged at the outset, the proposals to restrict birthright citizenship did not pass, either in 1995 or thereafter. In the wake of the hearing, both Ireland and New Zealand have restricted their birthright citizenship laws, but jus soli remains the rule in the United States. This, as I emphasize below, is important in itself, in view of the progressively hardening boundaries that structure the global regime of citizenship. The degree to which the contestations explored above mattered in this outcome is ultimately unknowable. However, it is undeniable that they introduced into a national public forum a historical account of U.S. citizenship that radically challenges the White epistemology of citizenship. These political remembrances offer a set of cognitive frames through which birthright citizenship for the children of undocumented immigrants can be seen not as an “offense to common morality and common sense” but as just and morally right.